LALA JOHARI MAL Vs. CHANDRA SEN

JUDGEMENT

(1.) This is an appeal from an order of the lower Appellate Court refusing to entertain an appeal by the plaintiffs, Benwari Lal and Johari Mal. The opinion of that Court was that no appeal lay. In the Trial Court of the Subordinate Judge, the suit was adjourned for hearing to 30 January 1925. On that date Benwari Lal plaintiff was present in Court and applied for an adjournment on the ground that one of his witnesses was not present, and the other who was present had not brought with him the account books which he was directed to bring, The Trial Court refused to adjourn the hearing and when the plaintiff expressed his inability to proceed with the trial of the suit, the Court dismissed the suit, stating in its judgment that it was dismissed for default. From the order sheet in the Vernacular, it appears that Benwari Lal was present throughout the proceedings up to the time when the Subordinate Judge passed the order of dismissal.

(2.) The question is whether the suit was dismissed under the provisions of Rule 2 or Rule 3 of Order XVII. An appeal would lie in case it was dismissed under Rule 3. We are of opinion that Rule 3 would apply to the circumstances of this case. The provisions of Rule 2 are applicable only when the parties or any of them fail to appear. In the present case, both the plaintiff and the defendant were present. It is true that the Subordinate Judge did not act according to law and did not proceed to decide the suit on the basis of the evidence already on the record. He stated in, his judgment that the suit was dismissed for default. This, however, does not prove that the proceedings were taken under Rule 2. The Subordinate Judge ought to have acted under Rule 3, and the plaintiff must have the benefit of the proper procedure. We hold that he was entitled to appeal.

(3.) We set aside the order of the lower Appellate Court and remand the proceedings to it for re-hearing of the appeal according to law. Costs here and heretofore shall follow the event.